Masseuse Will Be Tried On Prostitution Charges

September 08, 1984|The Morning Call

An Emmaus massage parlor owner-operator was bound over for Lehigh County Court on charges of prostitution after a state police undercover agent testified yesterday that she masturbated him during a massage.

Diane Marie Toobert, 22, of Lehighton R.6 was arrested by state police Aug. 3 at the Body Therapy massage parlor at 303 Main St.

After a 15-minute hearing, District Magistrate Mary Beth Shankweiler of Trexlertown determined there was enough evidence to send the case to court.

Defense attorney Wallace Worth argued that the masturbation was not part of the massage, for which the undercover agent had paid $20 in advance. Worth said sex was not discussed when the fee was paid and was only performed after the agent asked for it.

The agent testified he entered Body Therapy on the afternoon of Aug. 3 after making an appointment. He said Ms. Toobert told him it would cost $20 for a massage and he paid it. He said she took him to a room, asked him to strip and lie on his stomach on a massage table, after which she began massaging his backside with cream.

He said during the massage, he told her he had been to the Close Encounters massage parlor in East Allen Township, Northampton County. He said she asked how it was and he replied, "It was all right but I wanted to try your place."

He said she said she does not perform massages while stripped to the waist as advertised at Close Encounters because this could encourage men to touch her and she would not want that.

He said Ms. Toobert asked him to turn over on his back and she started massaging his hands and legs. He said she asked him if there was "anything else I could do for you."

He said he replied that at Close Encounters they massaged his genitals. He said she started to "massage his penis" and within a few seconds he told her to stop and told her he was an undercover policeman.

He said he informed the strike force of police waiting outside to come in and she was placed under arrest.

He said he asked and got back his $20 fee.

Worth asked that the charges be dismissed because, he said, "The $20 was for a massage . . . there was no discussion of sex when the money was exchanged."

He said the undercover agent "suggested his genitals be massaged, not for money. She did what was suggested and this is not prostitution . . . a sex act not for pay is not prostitution."

Asst. Dist. Atty. David Smith rebutted, "Clearly sex activity was implied as part of the agreement. Impliedly, the $20 fee was for masturbation. The act was performed. This is what was intended when the $20 was paid."

Worth responded, "It is not implied. . . . She had no way of knowing what the trooper would say when she asked if there was anything else."

Smith replied, "It would be naive to assume this was not in her mind right from the start."

Shankweiler said she took the case from District Magistrate John Zettlemoyer Jr. inwhose jurisdiction the arrest was made, because Zettlemoyer, as a lawyer, had past legal dealing with Ms. Toobert.

Ms. Shankweiler said Zettlemoyer had decided he could not hear the case without a possible conflict of interest.